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2002 DIGILAW 423 (ORI)

GOLAK CHANDRA BHOL v. BHASKAR BARAL

2002-07-10

P.K.MOHANTY

body2002
JUDGMENT : P.K. Mohanty, J. - This petition u/s 482, Cr.P.C. is directed against the order of the learned Sub-Divisional Judicial Magistrate dated 19.12.1983, taking cognizance of the offences under Sections 193/196/198/202/466 and 474 of the Indian Penal Code and issuing notice to the accused-petitioner thereunder fixing a date of appearance in 2(c) C.C. No. 73 of 1983. 2. The short fact of the case giving rise to the present petition is that the petitioner was the plaintiff in Title Suit No. 174 of 1978 in the Court of the learned Munsif, Kendrapara (now Civil Judge, Junior Division) praying for permanent injunction as against the defendant-opp. party in respect of suit schedule land. The plaintiff-petitioner produced a purported statutory certificate in Form-8 dated 9.7.1978 under the O.L.R. Act and the certified copies of order of the O.L.R. Authorities. These documents were produced in connection with Misc. Case Nos. 171 and 176 of 1978 in support of his claim of title, in order to obtain an ad interim order of injunction and the Misc. Cases were disposed of on 4.7.1978. The Opp. party No. 1-defendant thereafter made an allegation that these three documents were forged and fabricated ones. The plaintiff-petitioner filed his objection, but the learned Munsif made an enquiry u/s 340 of the Code of Criminal Procedure and came to the prima facie conclusion that the documents were forged ones and as such it was expedient in the interest of justice to launch a proceeding against the plaintiff, in his order dated 9.11.1983. A complaint petition was therefore filed before the learned S.D.J.M., Kendrapara which was registered as 2(c) C.C. No. 73 of 1983 under Sections 193/196/198/209/466 and 474, IPC. Allegation is made that the learned Magistrate without proper application of mind, basing on the said order of the learned Munsif, took cognizance of the offences alleged by his order dated 19.12.1983. 3. The petitioner, being aggrieved by the order/findings of the enquiry u/s 340, Cr.P.C., filed Criminal Appeal No. 43 of 1983 u/s 341, Cr.P.C. in the Court of the learned Sessions Judge, which was later transferred to the Court of learned Assistant Sessions Judge, who had granted stay of that order during the pendency of the appeal. It is the petitioner's case that Title Suit No. 174 of 1978 was withdrawn by him on 31.8.1982 upon intervention of the well-wishers as the matter was amicably settled. It is the petitioner's case that Title Suit No. 174 of 1978 was withdrawn by him on 31.8.1982 upon intervention of the well-wishers as the matter was amicably settled. Petitioner also withdrew the Criminal Appeal No. 43 of 1983, It is alleged that even thereafter, when the matter stood settled, he was served with a warrant of arrest upon which he surrendered and was released on bail, 4. The petitioner assails the order of cognizance mainly on the ground that after a lapse of years, the continuance of the present criminal proceeding would be an abuse of the process of law, inasmuch as the learned Munsif was not authorised u/s 340, Cr.P.C. to conduct an enquiry and record a finding of guilt against the petitioner before lodging a complaint before the learned Magistrate. The order of the learned Magistrate, taking cognizance of offence basing on such finding and complaint lodged by the Munsif is illegal and liable to be quashed. 5. In order to appreciate the contention raised, it is necessary to consider the relevant provision of Section 340(1) of the Cr.P.C. which reads thus : "Procedure in cases mentioned in Section 195 : (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of Sub-section (1) of Section 195, which appears to have been committed in gr in relation to a proceeding in that Court or, as the case may be in respect of a document produced or given in evidence in a proceeding in that Court, such Court may after such preliminary inquiry, if any, as it thinks necessary : (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) lake sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and bind over any person to appear and give evidence before such Magistrate." *** *** *** 6. A bare reading of the aforesaid provision of Section 340, Cr.P.C. makes it amply clear that either upon an application or suo motu if any Court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any offence either referred to in Clause (b) of Sub-section (1) of Section 195, Cr.P.C., which appears to have been committed in or in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court, the Court after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect, make a complaint thereof in writing, send it to a Magistrate having jurisdiction and take such other precautionary steps as contemplated under Clause (d) of Sub-section (1) of Section 340, Cr.P.C. 7. Thus whether a Court proceeds suo motu or on an application filed in that behalf, before a prosecution is launched in terms of Section 340(1), Cr.P.C., must be satisfied, that it is expedient in the interest of justice that an enquiry should be made. Interest of justice is one matterand expediency is another. Thus the Court is to be satisfied that not merely a bare interest of justice would be served, but also it is expedient in the interest of justice to prosecute. The Court is to clearly record a prima facie finding before taking steps for prosecution. Here the "Court" necessarily refers to the Court which initiates the proceeding under this Section and the offence must have been committed in a proceeding in that Court or in relation to such proceeding. A complaint by the Court is required where offence is of forging or using as genuine any document which is known or believed to be forged when such document is produced before the Court. It thus, necessarily requires that a Court which contemplates filing of a complaint must be satisfied on enquiry as it may think appropriate and record a preliminary and prima facie finding with regard to the offence committed. Whether the prosecution is necessary in the interest of justice has to be considered and recorded by the Court. The power u/s 340, Cr.P.C. should be exercised with great care and caution. Whether the prosecution is necessary in the interest of justice has to be considered and recorded by the Court. The power u/s 340, Cr.P.C. should be exercised with great care and caution. In passing an order for making a complaint, the Court should be careful to express any opinion on the guilt or innocence of the accused. Since this power is exercised primarily in the interest of justice and should not be allowed to be exercised as a means of satisfying an aggrieved party. Whether an enquiry is necessary or not is a matter of the Court's discretion which is to be exercised in the given facts and circumstances of each case. The enquiry contemplated obviously mean a judicial proceeding in which witnesses can also be examined, but a detailed enquiry may not be necessary nor the Court should decide the innocence or guilt of a person since the primary object is to ascertain whether there is prima facie case for trial of an offence. Thus, the contention of the petitioner that the learned Munsif could not have conducted an enquiry, is misconceived in law and has to be rejected. The contention that the Court could not have also recorded any finding of guilt or otherwise has also to be rejected, since the Court which proposes to launch a prosecution for the alleged offences committed during a proceeding before it must have to be prima facie satisfied that an offence has been committed. However, while recording a finding as to whether, an offence has been committed, the Court is not authorised to record a finding of guilt or otherwise. In fact, on a perusal of the order of the learned Munsif, it is clear that he has not recorded any finding as to the guilt or otherwise of the present petitioner, but what has been done is that the document produced in the proceeding was found to be not a genuine document and fabricated one. On such finding, the learned Munsif, after prima facie satisfied that the alleged offences in relation to the document produced before it has been committed, he has lodged the complaint before the appropriate Magistrate, who has taken cognizance, and therefore, no illegality is committed by the Munsif either in holding a preliminary enquiry or in lodging the complaint. 8. On such finding, the learned Munsif, after prima facie satisfied that the alleged offences in relation to the document produced before it has been committed, he has lodged the complaint before the appropriate Magistrate, who has taken cognizance, and therefore, no illegality is committed by the Munsif either in holding a preliminary enquiry or in lodging the complaint. 8. The learned Magistrate appears to have taken cognizance of the offences alleged and issued process as against the petitioner. A perusal of the complaint petition, on its own face value without taking aid of the report of the preliminary enquiry, makes out a clear case of an offence having been committed during the proceeding before the learned Munsif. The learned Munsif having found on preliminary enquiry that a forged certified copy of the order of the O.L.R. Authorities and the certificate in Form VIII under the O.L.R. Act has been filed in the Misc. Case filed before it, arising out of the suit for permanent injunction, has rightly thought it expedient in the interest of justice to lodge a complaint. Needless to emphasise that if a party, in the instant case, the plaintiff at all has taken recourse to filing the alleged forged document, in the interest of justice and expediency, this case has to be tried by the appropriate Court, i.e. the learned Magistrate. 9. The contention of the petitioner that after years continuance of a criminal proceeding will be an abuse of process of law, has also to be rejected in the fact situation of this case. In the interest of justice, it is expedient that an enquiry should be made into the offence. The offence alleged is of a grave and serious nature and cannot be allowed to be throttled for the reason that some years have passed in the meantime. Rather this Court is of the opinion that in the interest of justice and expediency, the matter should be tried and the guilty should be punished. 10. The offence alleged is of a grave and serious nature and cannot be allowed to be throttled for the reason that some years have passed in the meantime. Rather this Court is of the opinion that in the interest of justice and expediency, the matter should be tried and the guilty should be punished. 10. Viewed from another angle, the petitioner had himself challenged the conduct of enquiry and the complaint made by the learned Munsif u/s 340, Cr.P.C. in an appeal, Criminal Appeal No. 43 of 1983 before the learned Sessions Judge u/s 341, Cr.P.C. But he chose to withdraw the same and thus, the action taken u/s 340, Cr.P.C. by the learned Munsif has attained finality and is not subject to further challenge by way of a Revision, Sub-section (2) of Section 341, Cr.P.C. clearly stipulates that an order under this Section and subject to any such order, an order u/s 340, Cr.P.C. shall be final and shall not be subject to a Revision. Thus, otherwise also the decision of the learned Munsif to conduct a preliminary enquiry and on the basis of such preliminary enquiry, filing of a complaint before the learned Magistrate is not subject to challenge, the petitioner having withdrawn his appeal challenging such order. In the result, the petitioner is devoid of any merit and is rejected. The lower court records be transmitted forthwith for taking up of the trial expeditiously. Final Result : Dismissed